This Agreement is between Think Law Group Pty Limited ACN 621 042 242 ( Licensor ) and You ( Licensee )
BACKGROUND
A. The Licensor owns the Software and provides the Services.
B. The Licensee wishes to use the Software and engage the Licensor to provide the Services.
C. This Agreement sets out the terms and conditions upon which the Licensor has agreed to grant a licence to the Licensee to use the Software and provide the Services to the Licensee.
AGREEMENT
1. INTERPRETATION
1.1 Definitions
In this Agreement the following words have the following meanings:
Business Day means a day that is not a Saturday, Sunday or public holiday and on which banks are open for business in New South Wales.
Confidential Information means any information or document about or in any way relating to the terms of this Agreement or the Licensor in any media or form that is acquired by or made available to the Licensee in the course of the relationship between the Parties, including but not limited to any information or documents about the Software, Services, the Licensor’s business, organisational structure, activities, operating procedures, products and services, trade secrets and know how, finances, plans, transactions and policies.
Event of Default means:
a. the Licensee does not pay any money due for payment by it in accordance with this Agreement;
b. a representation, warranty or statement made or deemed to be made by a Party in this Agreement is untrue or misleading;
c. an event or series of events, including any material adverse change in the property or financial condition of a Party, occurs which has or is likely to have a material adverse effect on its ability to perform its obligations under this Agreement;
d. an investigation is instituted under the Corporations Act 2001 or other legislation into or an inspector is appointed to investigate a Party’s affairs;
e. a Party is or states that it is unable to pay all its debts as and when they become due and payable;
f. a corporate Party is taken or must be presumed to be insolvent or unable to pay its debts under any applicable legislation;
g. an application or order is made for the winding up or dissolution of a corporate Party or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;
h. an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporate Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 5 Business Days;
i. a controller is appointed in respect of any property of a corporate Party;
j. a corporate Party is deregistered under the Corporations Act 2001 or notice of its proposed deregistration is given to the corporation;
k. a distress, attachment or execution is levied or becomes enforceable against any property of a corporate Party;
l. a corporate Party enters into or takes action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;
m. a receiver or receiver and manager is appointed in respect of any individual Party;
n. a petition for the making of a sequestration order against the estate of a Party is presented and the petition is not stayed, withdrawn or dismissed within 5 Business Days or a Party presents a petition against itself;
o. a Party presents a declaration of intention under section 54A of the Bankruptcy Act 1966 ;
p. an individual Party dies; or
q. anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a Party.
Fee means the fee payable from the Licensor to the Licensee as set out in the Website or as otherwise notified by the Licensor to the Licensee from time to time.
Parties means the parties entering into this Agreement.
Payment Method means the payment by the Licensor by credit card using the online merchant facility or as otherwise reasonably requested by the Licensor from time to time.
Payment Terms is such that the Fee must be p aid monthly in advance with the payment of the Fee to commence one (1) month after the date of this Agreement .
Privacy Policy means the Licensor’s privacy policy, as amended from time to time, and which available for download from the Website.
Services means the initial s etup, reasonable configuration and basic customisation of the S oftware. For the avoidance of doubt the Parties acknowledge and agree that any assistance required by the Licensee outside of the Services may attract additional fees and charges as notified by the Licensor at their discretion.
Software m eans the LawSwitch software as set out in the W ebsite and includes any instructions in hard copy or electronic form and any update or modification of the So ftware as may be released from time to time after the date of this Agreement.
Website means www.lawswitch.com.
1.2 Interpretation
In this Agreement, unless expressed to the contrary:
a. words in the singular include the plural and vice versa;
b. headings are for convenience and do not affect the interpretation of this Agreement;
c. any gender includes the other gender;
d. a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
e. if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
f. a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;
g. if a word or phrase is defined in this Agreement, then any other grammatical form of the word or phrase shall have a corresponding meaning;
h. a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;
i. “includes” and similar words mean includes without limitation;
j. no clause of this Agreement shall be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
k. a reference to a Party includes the Party’s legal personal representatives, successors, assigns and persons substituted by novation;
l. a reference to this or any other agreement includes the agreement, all schedules and annexures as novated, amended or replaced and despite any change in the identity of the parties;
m. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
n. a reference to time is to local time in New South Wales; and
o. a reference to “$” or “dollars” refers to the currency of Australia from time to time.
2. LICENCE OF SOFTWARE AND PROVISION OF SERVICES
2.1 Licence of Software and provision of Services
In consideration of the Licensee paying the Fee to the Licensor, the Licensor:
a. grants the Licensee a licence to use the Software; and
b. agrees to provide the Services to the Licensor,
on the terms and conditions set out in this Agreement.
2.2 Term of Agreement
This Agreement commences on the date of this Agreement and will continue until terminated in accordance with the terms of this Agreement.
2.3 Payment of Fee
The Fee will be paid by the Licensee to the Licensor in accordance with the Payment Terms by the Payment Method.
2.4 Conditional Agreement
The Parties agree that the Licensor licenses the Software to the Licensee on the following conditions:
a. the licence of the Software and provision of the Services is not exclusive to the Licensee and the Licensor may licence the Software and provide the Services to other licensee’s on terms and conditions to the Licensor’s discretion;
b. the licence of the Software and provision of the Services is revocable by the Licensor on the terms and conditions of this Agreement; and
c. the Licensee has no right to sub-licence the Software.
3. ACKNOWLEDGEMENTS, WARRANTIES AND REPRESENTATIONS
3.1 Licensee acknowledgements, warranties and representations
The Licensee acknowledges, agrees, warrants and represents that:
a. it has legal capacity, power and authority to enter into this Agreement;
b. in respect of the Software:
i. the Licensor owns all intellectual property rights in the Software and by entering into this Agreement title and/or ownership of the Software has not been transferred to the Licensee. The Licensee retains their intellectual property in any Licensee uploaded material or Licensee created content;
ii. the Licensor may licence the Software to other persons during the term of this Agreement;
iii. the Licensee uses the Software at its own risk;
iv. the Software will only be used by the Licensee in accordance with the Software’s normal operating procedures as notified by the Licensor to the Licensee from time to time;
v. the Licensee must not copy, modify, reproduce, reverse engineer or otherwise alter in any way the Software without the prior written consent of the Licensor;
vi. the Licensee will be responsible for the Software and will ensure at all times during the term of this Agreement that the Software is protected from damage, misuse and/or unauthorised use by any person;
vii. it will create and maintain true and complete records of any use of the Software and permit the Licensor to inspect these records upon receipt of reasonable notice from the Licensor;
viii. if the Licensor wishes to provide the Licensee with an update of the Software then the Licensee will facilitate the provision of such update by giving any assistance to the Licensor that the Licensor reasonably requires;
ix. the Software could include technical inaccuracies or typographical errors; and
x. the Licensor may make improvements and/or changes to the Software at any time;
xi. it will promptly notify the Licensor of any identified errors, viruses or bugs in the Software;
b. in respect of the Services:
i. the Licensor may carry out the Services for persons other than the Licensee during the term of this Agreement;
ii. the Licensor may subcontract the provision of some of the Services to a subcontractor;
iii. it will grant the Licensor access to the Licensee’s equipment, including by remote log in, as necessary allow the Licensor to perform the Services;
iv. the Licensee is responsible for providing all plant, tools, equipment and substances required for the Licensor to perform the Services, unless otherwise agreed between the Parties;
c. it will not use the Software or the Services for any purpose that is unlawful or prohibited by this Agreement or by law or in manner that could damage, disable, overburden, or impair the Licensor, the Software or the Services or interfere with any other party's use and enjoyment of the Software and the Services;
d. it will not attempt to gain unauthorized access to any Software, Services, o ther accounts, computer systems or networks of the Licensors through hacking, password mining or any other means;
e. it will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Software or the Services ;
f. it will act lawfully and will comply with any applicable licenses, laws, regulations, industry codes of conduct, health and safety requirements and Australian standards;
g. it will not infringe any third party rights or violate any other agreement by using the Software or the Services ;
h. the Licensor may pursue any available equitable or other remedy against the Licensee as a result of a breach by the Licensee of any provision of this Agreement; and
i. any warranties, so far as they relate to the Licensee, are true at all times during the term of this Agreement
3.2 Licensor acknowledgements, warranties and representations
The Licensor acknowledges, agrees, warrants and represents that:
a. it has legal capacity, power and authority to enter into this Agreement;
b. in respect of the Software:
i. to the best of its knowledge and belief the Software does not infringe the intellectual property rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the Software; and
ii. it will endeavour to correct any errors, viruses and bugs identified in the Software as soon as reasonably practicable;
c. in respect of the Services:
iii. there are no legal restrictions preventing it from performing the Services;
iv. it is duly qualified to perform the Services;
v. in performing the Services it will act with due care and skill;
vi. it will re-perform any defective or non-conforming Services;
vii. it will act lawfully and will comply with any applicable licenses, laws, regulations, industry codes of conduct, health and safety requirements and Australian standards in performing the Services;
viii. it is not aware of any actual or potential conflict of interest in it providing the Services (unless otherwise agreed in writing with the Principal); and
ix. it will not infringe any third party rights or violate any other agreement by performing the Services.
3.3 No warranty as to suitability
a. The Licensor makes no representations about the suitability of the Software or the Services for any purpose.
b. The Licensor hereby disclaims all warranties and conditions with regard to the Software and the Services, including all warranties and conditions of merchantability, whether express, implied or statutory, fitness for a particular purpose, title and non-infringement.
c. In no event shall the Licensor be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of the Software or the Services.
d. The Licensor does not make any assurances with regard to the accuracy of the results or output that derives from the Software or the Services.
4. ACCOUNTS, PASSWORDS AND SECURITY
4.1 Account
If required by the Licensor, the Licensee must open an account with the Licensor and complete the registration process by providing the Licensor with current, complete and accurate information as requested.
4.2 Password
If a password is generated for any account, the Licensee acknowledges and agrees that they are solely responsible for maintaining the confidentiality of the password and the account.
4.3 Account Activity
The Licensee acknowledges and agrees that it is solely responsible for any and all activities that occur under its account.
4.4 Security breach
a. The Licensee must immediately notify the Licensor of any unauthorised use of its account or any other breach of security.
b. The Licensor will not be liable for any loss that the Licensee may incur as a result of someone else using the Licensee’s password or account, either with or without the Licensee’s knowledge.
c. The Licensee may be held liable for losses incurred by the Licensor or another party due to someone else using the Licensee’s account or password.
5. LIABILITY AND INDEMNITY
5.1 Indemnity
Other than as provided in this Agreement, each Party will at all times indemnify the other Party from and against any claims, liabilities, costs, damages, losses and expenses arising out of or in any way connected with any proceedings commenced against the other Party where such claims, liabilities, costs, damages, losses or expenses were caused by a breach by the first Party of its obligations under this Agreement or any act or omission of the first Party that is negligent, unlawful or wilful.
5.2 Liability of Licensor
For the avoidance of doubt, the Licensor’s liability for breach of any of its obligations under this Agreement or breach of any warranty implied by law will, at the option of the Licensor, be limited to replacing or repairing the Software, re-supplying the Services or paying the cost of re-supplying the Services.
6. TERMINATION
6.1 Immediate termination
A Party may terminate this Agreement immediately by giving notice in writing to the other Party in the event that:
a. the other Party breaches a term of this Agreement and such breach is notified to the defaulting Party and is not remedied withi n 10 Business Days ;
b. there is an Event of Default in respect of the other Party.
6.2 Termination with notice
a. Either Party may terminate this Agreement at any time by giving at least one (1) month n otice notice 20 Business Days notice in writing to the other Party.
b. The Parties may terminate this Agreement at any time on written agreement between the Parties.
c. Termination of this Agreement pursuant to this clause 6 will not release either Party from any rights or liabilities accrued prior to termination or which would have accrued as a result of an act or omission prior to termination but for the termination of this Agreement.
6.3 Force Majeure
a. This Agreement may be suspended or terminated, by agreement between the parties, if either Party is unable to perform this Agreement due to a force majeure event (an “act of God”), such as a flood, fire, explosion, death or other circumstance outside the party’s reasonable control.
b. As soon as possible after a force majeure event occurs, the affected Party must notify the other party of the force majeure event and the extent to which the notifying party is unable to perform its obligations under this Agreement.
c. If the notifying party is wholly or partially precluded from complying with its obligations under this Agreement by the force majeure event, then that party’s obligations to perform in accordance with this Agreement may, by agreement between the Parties, be either terminated or suspended for the duration of the delay arising out of the force majeure event.
6.4 Software function on termination
For the avoidance of doubt, the Parties acknowledge and agree that on the termination of this Agreement, the Licensee’s right to use the Software and access the Services will immediately cease and the Software will immediately cease to function on the Licensee’s website and other online locations .
7. CONFIDENTIALITY
7.1 Non-disclosure
Subject to clause 7.2, the Licensee agrees:
a. not to disclose the Confidential Information to any third party at any time;
b. to use its best endeavours to protect the Confidential Information from any unauthorised disclosure;
c. only to use the Confidential Information for the purpose for which it was disclosed by the Licensor and not for any other purpose; and
d. to be responsible for and assume liability in relation to all of its employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this Agreement.
7.2 Authorised disclosure
The Licensee’s obligations set out in clause 7.1 do not apply to Confidential Information:
a. that is already in the public domain, except as a result of the actions of the Licensee in breach of this Agreement; and/or
b. received from a third party, except where there has been a breach of confidence; and/or
c. that must be disclosed by law, provided that the Licensee reveals only so much of the Confidential Information as the Licensee is required by law to disclose and gives sufficient notice to the Licensor in order to allow the Licensor to object to, or otherwise prevent, the Confidential Information being disclosed.
7.3 Survival of clause
This clause 7 will survive termination of this Agreement.
8. PRIVACY
In using the Softwa re and the Services , the Parties agree to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines, including the Licensor’s Privacy Policy is available for download from the Website.
9. COSTS AND EXPENSES
a. Each Party must pay its own costs and expenses (including legal costs and expenses) in relation to the negotiation, preparation and execution of this Agreement and any variation or replacement of this Agreement.
b. The Licensee will pay any duty, taxes, registration and other fees (including fines and penalties relating to the duty, taxes and fees) which are payable in relation to this Agreement and any transaction contemplated by it.
10. Goods & Services Taxation (GST)
10.1 Taxable supply
a. If GST is payable by the Licensor on any supply made under this Agreement the Licensee must pay to the Licensor an amount equal to the GST payable on the supply.
b. That amount must be paid at the same time that the consideration for the supply is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement.
c. On receiving that amount from the Licensee, the Licensor must provide the Licensee with a tax invoice for the supply.
10.2 Adjustment events
If an adjustment event arises in respect of any supply made by the Licensor under this Agreement, a corresponding adjustment must be made between the Licensor and the Licensee in respect of any amount paid to the Licensor by the Licensee under this Agreement and any payments to give effect to the adjustment must be made.
10.3 Payments
If the Licensee is required under this Agreement to pay for or reimburse an expense or outgoing of the Licensor or is required to make a payment under an indemnity in respect of an expense or outgoing of the Licensor, the amount to be paid by the Licensee is the sum of:
a. the amount of the expense or outgoing less any input tax credit in respect of that expense or outgoing that the Licensor is entitled to; and
b. if the Licensor’s recovery from the Licensor is in respect of a taxable supply, an amount equal to the GST payable by the Licensor in respect of that recovery.
10.4 GST terminology
The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999.
11. MISCELLANEOUS
11.1 Amendment
This Agreement may only be amended by written agreement between the Parties.
11.2 Notices
a. A notice or other communication must be in writing and may be:
i. delivered personally;
ii. given by an agent of the sender;
iii. left at a Party’s current delivery address for notices as set out in this Agreement;
iv. sent by prepaid mail to a Party’s current postal address for notices as notified by the respective Party from time to time;
v. sent by fax to a Party’s current fax number for notices as notified by the respective Party from time to time; and/or
vi. sent by email to a Party’s current email address for notices as notified by the respective Party from time to time.
b. A notice or communication is taken as having been given:
vii. when left at a Party’s current delivery address for notices; or
viii. if mailed within Australia to an Australian address, on the third Business Day after posting; or
ix. if mailed outside of Australia to an Australian postal address or within Australia to an address outside of Australia, on the tenth Business Day after posting; or
x. if sent by fax, when the sender receives a fax report from the recipient’s fax machine acknowledging receipt of the notice, unless the fax is received after 5pm in the place of receipt, in which case it is taken as having been given at 9am on the next day that is not a Saturday, Sunday or bank or public holiday in the place of receipt; or
xi. if sent by email, unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain name, 24 hours after the email was sent, unless the email is sent after 5pm or on a non-Business Day, in which case it is taken as having been given at 9am on the second Business Day (in the place of receipt) after the email was sent.
11.3 Relationship of parties
a. Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.
b. The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
11.4 Assignment
a. This Agreement is personal to the Parties.
b. A Party must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without the prior written consent of the other Parties (such consent not to be unreasonably withheld).
c. Any purported dealing in breach of this clause is of no effect.
11.5 Waiver or variation of rights
a. Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
b. A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
11.6 Powers, rights and remedies
a. Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party.
b. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.
11.7 Consents and approvals
Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
11.8 Further assurance
Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.
11.9 Counterparts
a. This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.
b. The date of this Agreement will be the date that it is executed by the last Party.
11.10 Entire agreement and understanding
In respect of the subject matter of this Agreement:
a. this Agreement contains the entire understanding between the Parties;
b. all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement; and
c. each of the Parties has relied entirely on its own enquiries before entering into this Agreement.
11.11 Governing law and jurisdiction
a. This Agreement is governed by the laws of New South Wales.
b. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
BY USING LAWSWITCH™ YOU ARE DEEMED TO HAVE DULY EXECUTED THE AGREEMENT AND WILL BE BOUND BY THE TERMS CONTAINED THEREIN.